What is an omitted spouse and can they claim a share of the estate?

What the Law Says

California law protects spouses who marry after a will is executed but are not named or provided for in that will. These 'omitted spouses' have statutory rights to inherit part of the estate unless specific exceptions apply.

Under California Probate Code § 21610, if a person executes a will before marrying and does not update it to include their new spouse, that spouse is considered 'omitted' — even if the will is otherwise valid. The omitted spouse is entitled to receive the same share they would have received had the decedent died intestate (without a will), unless certain exceptions apply.

Specifically, the omitted spouse receives one-half of the community property and one-half of the decedent’s separate property acquired during the marriage — essentially the share they would have received under intestate succession rules for surviving spouses. This protection exists to prevent unintentional disinheritance due to oversight or timing.

However, Probate Code § 21620 lists key exceptions: the omission is excused if (1) the will shows intent to omit the spouse (e.g., explicit language like 'I am unmarried' or 'I intentionally omit any future spouse'), (2) the spouse was provided for outside the will (e.g., via trust, life insurance, or transfer on death deed) with the intent that it substitute for a testamentary provision, or (3) the spouse waived their rights in writing (e.g., prenuptial or postnuptial agreement).

Statutory Text

If a testator fails to provide in his or her will for a person who becomes the testator's spouse after the execution of the will, the omitted spouse shall receive a share of the estate equal to that which the spouse would have received if the testator had died intestate, unless... [exceptions apply].

— Probate Code § 21610 — Omitted spouse

Statutory Text

The provisions of Section 21610 do not apply if any of the following is true: (a) It appears from the will that the omission was intentional. (b) The testator provided for the spouse by transfer outside the will... with the intent that the transfer be in lieu of a testamentary provision. (c) The spouse waived the right to share in the testator's estate.

— Probate Code § 21620 — Exceptions

What to Do

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